Van Zyl and Others v Government of Republic of South Africa and Others (170/06) [2007] ZASCA 109; [2007] SCA 109 (RSA); [2008] 1 All SA 102 (SCA); 2008 (3) SA 294 (SCA) (20 September 2007)

Van Zyl and Others v Government of Republic of South Africa and Others (170/06) [2007] ZASCA 109; [2007] SCA 109 (RSA); [2008] 1 All SA 102 (SCA); 2008 (3) SA 294 (SCA) (20 September 2007)

The Supreme Court of Appeal held that South African law does not confer a right to diplomatic protection on nationals, especially not a right to a particular form of protection. The Government's duty is limited to considering requests for diplomatic protection rationally and in good faith. In this case, the Government received the appellants' request, considered it properly, and declined to act for rational policy reasons. The appellants failed to establish any enforceable right to diplomatic protection under South African or international law. The corporate appellants and trusts did not qualify for diplomatic protection due to the nationality rule and cession of claims. Furthermore, the...

Citation
[2007] ZASCA 109
Parties
Appellant: Josias van Zyl; Appellant: Josias van Zyl and Gail van Zyl NNO (Trustees for the Burmilla Trust NO TMP 4027); Appellant: Josias van Zyl Family Trust NO TMP 4028; Appellant: Swissbourgh Diamond Mines (Pty) Ltd; Appellant: Patiseng Diamonds (Pty) Ltd; Appellant: Motete Diamonds (Pty) Ltd; Appellant: Rampai Diamonds (Pty) Ltd; Appellant: Matsoku Diamonds (Pty) Ltd; Appellant: Orange Diamonds (Pty) Ltd; Respondent: Government of the Republic of South Africa; Respondent: President of the Republic of South Africa; Respondent: Minister of Foreign Affairs of the Republic of South Africa; Respondent: Deputy Minister of Foreign Affairs of the Republic of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 September 2007
Case Number
170/06
Procedural Posture
Review Application / Appeal From Pretoria High Court to Supreme Court of Appeal
Outcome
Appeal dismissed with costs, including costs consequent on employment of three counsel.
Judges
Harms, Heher, Cachalia, Hurt, Mhlantla
Legal Topics
Diplomatic Protection, Expropriation Without Compensation, Exhaustion of Local Remedies, Nationality Rule, International Delict, Judicial Review
Public International Law Constitutional Law Diplomatic Protection Expropriation Without Compensation Exhaustion of Local Remedies Nationality Rule International Delict Judicial Review

Case Brief

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Parties

Josias van Zyl

Appellant

Josias van Zyl and Gail van Zyl NNO (Trustees for the Burmilla Trust NO TMP 4027)

Appellant

Josias van Zyl Family Trust NO TMP 4028

Appellant

Swissbourgh Diamond Mines (Pty) Ltd

Appellant

Patiseng Diamonds (Pty) Ltd

Appellant

Motete Diamonds (Pty) Ltd

Appellant

Rampai Diamonds (Pty) Ltd

Appellant

Matsoku Diamonds (Pty) Ltd

Appellant

Orange Diamonds (Pty) Ltd

Appellant

Government of the Republic of South Africa

Respondent

President of the Republic of South Africa

Respondent

Minister of Foreign Affairs of the Republic of South Africa

Respondent

Deputy Minister of Foreign Affairs of the Republic of South Africa

Respondent

Procedural Posture

Review Application / Appeal From Pretoria High Court to Supreme Court of Appeal

Legal Issues

  1. 1 Whether South African law confers a right to diplomatic protection on nationals in respect of injuries caused by a foreign state.
  2. 2 Whether the Government of South Africa was obliged to provide diplomatic protection to the appellants regarding the cancellation and revocation of mineral leases by the Government of Lesotho.
  3. 3 Whether the Government's decision to refuse diplomatic protection was irrational or unlawful under South African law.

Ratio Decidendi

The Supreme Court of Appeal held that South African law does not confer a right to diplomatic protection on nationals, especially not a right to a particular form of protection. The Government's duty is limited to considering requests for diplomatic protection rationally and in good faith. In this case, the Government received the appellants' request, considered it properly, and declined to act for rational policy reasons. The appellants failed to establish any enforceable right to diplomatic protection under South African or international law. The corporate appellants and trusts did not qualify for diplomatic protection due to the nationality rule and cession of claims. Furthermore, the...

Court Disposition

Appeal dismissed with costs, including costs consequent on employment of three counsel.

Orders

  • The appeal is dismissed with costs, including the costs consequent on the employment of three counsel.